Time for eULeX To prioriTize war crimes - Amnesty International ...

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Kosovo: Time for EULEX to prioritize war crimes
5. LEGAL FRAMEWORK FOR THE
INVESTIGATION AND PROSECUTION
OF CRIMES UNDER INTERNATIONAL
LAW IN KOSOVO
“There are, however, elements of uncertainty regarding the applicable law in Kosovo, which
resulted not only from the EU position on the independence of Kosovo, but on the overall
uncertainty on Kosovo status. In terms of applicable law, in many cases the old Yugoslav
code was active when the criminal offence was committed. In many areas, for example in
civil matters, there is still nothing but the Yugoslav code. We also have to consider the series
of UNMIK regulations on the judiciary. Then, after the proclamation of independence of
Kosovo, the Pristina National Assembly started adopting its own legislation. Therefore, we
face the question of which legal order, which legislation to apply, especially when they differ.
This dilemma emerged primarily from the uncertainty of the Kosovo status, and the lack of an
internationally shared solution to the question”. 21 , Dragomir Yordanov, former EULEX judge.
In Kosovo, under both UNMIK and EULEX, all crimes under international law have been, and
continue to be prosecuted under Article 142 of the 1976 Criminal Code of the Socialist
Federal Republic of Yugoslavia (SFRY CC). The SFRY CC provides for only a limited number
of crimes under international law, covering genocide and a limited list of war crimes,
including at Article 142 -“War Crimes against the civilian population”. 22
Applicable law was initially defined by the Special Representative of the UN Secretary
General (SRSG) in UNMIK Regulation 1999/1 (25 July 1999), as the law in force prior to the
NATO intervention on 24 March 1999. 23 Following resistance by the Albanian legal
community to applying this code – the law in force during the period of Serbian repression -
in December 1999, the SRSG promulgated Regulation 1999/24, which instead provided that
: ‘[T]he law applicable in Kosovo shall be: (a) The regulations promulgated by the SRSG ….
and (b) The law in force in Kosovo on 22 March 1989”. 24
All investigations and prosecutions in Kosovo of crimes under international law committed in
the context of the Kosovo conflict between 1998-1999 are conducted under the 1976 SFRY
CC. 25
Similarly, the criminal procedural code in force in Kosovo, until 6 April 2004, when the
Provisional Criminal Procedural Code of Kosovo (PCPCK) , introduced under UNMIK
Regulation No. 2003/26, was adopted, was the Law on Criminal Proceedings of the SFRY
(LCP). The PCPCK makes it clear that the applicable law for proceedings whose indictments
had been filed before the entry into force of the PCPCK - until the final judgment - is the
LCP. Once a final decision has been delivered, extraordinary remedies are ruled by the
PCPCK. 26
Amnesty International April 2012 Index: EUR 70/004/2012